Law of Guardianship in India as per different religions

A guardian is a person appointed to look after another person or his property in India, as per the personal laws of the religion into which the minor was born. He or she takes on the responsibility of caring for and protecting the person for whom he or she has been appointed guardian. On behalf of the ward's person and property, the guardian makes all legal decisions.

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A guardian is someone who  is in charge of a child's welfare, needs, education, and other basic  requirements. In most instances, a father is the child's natural guardian, and  in his absence or death, the mother becomes the child's guardian. Other than  the mother and father, no one else can be the child's natural guardian. When a person other than the child's  father and mother has legal custody of the child, it is an established guardianship. A guardian has jurisdiction over a child  and has the authority to make all decisions about the child. The guardian is  thus legally responsible for the child.


  Since a minor is physically and mentally imperfect and inexperienced, and therefore requires the care, attention, and security of another person, guardianship is necessary for a minor child under the age of eighteen.

 

1.    Guardianship under the Hindu law

The Hindu Minority and  Guardianship Act, 1956, regulates guardianship of minor children in Hindu law (covers Hindus, Sikhs, Jains and Buddhists  in India). A minor is described as anyone under the age of eighteen,  according to Section 4(a) of the Act. A guardian, according to Section 4(b) of  the Act, is an individual who is responsible for the child's care, property, or  both. The various forms of guardianship in India include:

     
  • Natural guardian
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  • Testamentary guardian
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  • Guardian appointed by the court
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  • De facto guardian
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  • Guardians by affinity

 

Natural  guardian
Only three people are  considered natural guardians, according to Section 6 of the Hindu Minority and  Guardianship Act, 1956: the mother, father, and husband. A father or husband of  a minor child or minor wife cannot be stripped of their natural guardianship  unless the court considers them incompetent to care for the minor child or  wife, according to Section 19 of the Guardians and Wards Act, 1890.

According to Section 13  of the Hindu Minority and Guardianship Act, 1956, the welfare of a minor child  is paramount, and if the court decides that the guardianship of any person is  not in the best interests of the child, the court may remove that person as the  child's guardian.

Even if the father is  alive, the mother is the natural guardian of minor illegitimate children under  Section 6(b) of the Hindu Minority and Guardianship Act, 1956. The natural  guardianship of the adopted son under Section 7 is passed on to the adoptive  father and, after his death, to the adoptive mother. In the case of a legitimate  child, a mother may only become a guardian after the father's death or  inability to become a guardian. Section 6(a) states that  custody of a child under the age of five should be with the mother unless the  court finds that doing so will be harmful to the child's welfare.

In the case of Ms.  Githa Hariharan and anrs. v. Reserve Bank of India and anrs., the  question of whether a minor child's custody may be granted to the mother in the  absence of the father was raised. It was decided that the word  "after" in Section 6(a) should be interpreted broadly to include  "in the absence of" rather than "after the lifetime."

 

 

 

Testamentary  guardians
A testamentary guardian  is a guardian appointed in a will by the natural guardian. A father has the  testamentary right to appoint a guardian for his legitimate children or  property, or both, under Section 9(1), but Section 9(2) states that if the  mother is alive after the father's death, she will be the guardian of the  children, and the father's will will be restored only if the mother dies  without appointing a guardian.

The mother of  illegitimate children has the authority to appoint a guardian for the children,  property, or both under Section 9(4). The guardianship of a minor girl ends  when she marries, and it does not come back even though she becomes a widow  while still a minor. The person named as a testamentary guardian must  explicitly or implicitly acknowledge the guardianship. He has the right to  refuse to be the guardian, but once he has agreed to be the guardian, he cannot  refuse or resign unless the court gives him permission.

  Guardians  appointed by the court
The court can appoint a  guardian to a child under the Guardians and Wards Act, 1890 which would be  called a “certified guardian”. The powers of the certified guardian are also  stated in the Act. The Act confers power to district courts. A district court can  choose to select any person as the guardian of a child if it thinks necessary  for the welfare of the child. The Act specifies that while appointing the  guardian of a child the court must consider the child’s sex, age, parent’s  wish, and the personal law of the child. The Act considers that the welfare of  the child is of paramount consideration and any decision taken by the court  should be for the welfare of the child. High Courts have an inherent power to  appoint a guardian to a child, undivided interest in a coparcener, or his  separate property but this power is rarely used by the High Court. 

Guardianship  by affinity
The guardianship of a  minor widow by a relative within the degree of sapinda is known as affinity  guardianship. A father-in-law may be a guardian by affinity, but Section 13 of  the Hindu Minority and Guardianship Act states that the child's welfare must  come first, so it's important to make sure the minor widow is safe and that her  needs are met by the guardian by affinity.

De  facto guardian
Although the word  "de facto guardian" is not stated in any statute, the court has  always recognised it. A de facto guardian is someone who has consistently shown  an interest in caring for, handling, or managing the infant, his or her  property, or both. A de facto guardian is not a legal guardian, and therefore  has no legal authority over the child or the child's property, but he has  assumed responsibility for the child and the property. A de facto guardian is  not formed by a single or few actions, but rather by a consistent pattern of  behaviour regarding the child's property.

    

 

2. Guardianship under Muslim law

The law of guardianship  in Muslims came from certain verses in the Quran and a few hadids. Under Muslim  law, there are only three types of guardians:
Natural  guardian

The only father is  considered the natural guardian of a child under Muslim law, and the mother is  not considered a natural or other guardian even after the father's death. Even  if the child's custody is not with him, the father is considered the child's  only natural guardian and has authority over all decisions concerning the  child. The court in Imambandi v. Mutsaddi held that the father is the sole and  supreme guardian of his minor children as long as he is alive.

Only the father's legitimate  children are under his guardianship. He is not entitled to guardianship of the  illegitimate children. A Muslim mother may have custody of her children, but  she is not allowed to be their guardian.

The parent is the natural  guardian of a child in Sunnis, and the guardianship is passed to the executor  after the father's death. The father is the natural guardian of Shias, but  after his death, the guardianship is passed to the grandfather, if he is still  alive. And even if the father has named an executor, if the grandfather is  alive, the guardianship will be vested in him. Only in the  absence or after the death of the grandfather will the executor become the  guardian. If the grandfather names an executor before his death, the executor  appointed by the grandfather becomes the guardian after the grandfather's  death.

Testamentary  guardian
The term wali, guardian,  amin, or kaim-mukam refers to a testamentary guardian. The father can appoint a  testamentary guardian in both Shia and Sunni traditions. In the absence of the  father and his appointed executor, the grandfather has the power to appoint a  testamentary guardian. The father's guardian is only true in Shias if the  grandfather is deceased; otherwise, the grandfather has the power to appoint  the testamentary guardian. In both Shias and Sunnis, the mother has no right to  name a guardian for her children except in two cases:

 
       
  • By her father's will, she has been named  executrix.
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  • She owns a home that will pass to her  children after she passes away.
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By the father's or  grandfather's will, a mother may be appointed as a testamentary guardian or  executrix of a kid. A non-Muslim mother may be named as a testamentary guardian  in the case of Sunnis, but not in the case of Shias. A testamentary guardian  must explicitly or implicitly recognize the guardianship. If the guardianship  is agreed, it can only be denied or renounced with the court's approval.  

  Guardian  appointed by the court
  When natural and  testamentary guardians fail, the court has the right to appoint a guardian for  the child. The Guardians and Wards Act of 1890 governs the appointment of a  guardian for a child from any group. The Act empowers the district court to  nominate a guardian after considering the child's best interests. The High  Court also has the authority to name a guardian for a minor, which it only does  on rare occasions.

 

3. Guardianship under Christian law

The Guardianship and  Wards Act of 1890, which is a secular Act, determines the guardianship of  Christians. The guardian appointed for the child for the property must consider  the child's health, according to Section 17 of the Act. The section notes that  when naming a guardian, the sex, age, faith, character, and capability of the proposed  guardian, desires of the child's parents, and if the minor child is old enough,  his choice must also be taken into account.

  When the father or  husband is fit to be the guardian of the child or wife, Section 19 of the Act  states that the court has no power to appoint a guardian or when the property  is under the control of the Court of Wards. Section 24 notes that the guardian  should assume custody of the child and that it is the guardian's responsibility  to provide for the child's health, education, and other needs.

 

4. Guardianship under Parsi law

The Guardianship and  Wards Act of 1890 governs a child's guardianship. The Parsis do not have their  own personal guardianship rules. It is predominantly governed by Hindu customs  and rules. In addition, Muslims, Christians, and Parsis have no personal laws  on adoption. The Guardianship and Wards Act of 1890 requires them to go to  court. A child should only be taken into foster care, and once he reaches the  age of majority, he has complete autonomy over his decisions.

  Conclusion
  Children are a country's  future, so it's important that they grow up in a positive atmosphere where they  are well treated and nurtured. A minor child is incapable of self-care or  making choices. There is a need for someone to look after the child, to help,  to love, and to provide all of the child's basic needs. As a result, a child's  guardian should be someone who takes good care of the child. The wellbeing of a  child thus should be the most important factor when naming guardians.

   

 

Guardian, Guardinship, Parents, Personal Laws, Muslim Law, Hindu Law, Christian Law, Parsi Law.

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